REPORT giving an opinion on the draft revised European Social Charter

13 February 1995

Doc. 7243

REPORT giving an opinion on the draft revised European Social Charter

(Rapporteur: Mr RATHBONE, United Kingdom, European Democratic Group)

Summary

On 5 November 1990, an informal ministerial conference on human rights was held in Rome. One of the topics discussed was the European Social Charter, with the result that the Council of Europe's Committee of Ministers was invited to take the necessary steps for a detailed study of the role, contents and functioning of the European Social Charter to be undertaken as soon as possible. The Assembly supported that decision. The essential steps in renewing the Council of Europe's Social Charter have been the following:

—an amending protocol to clarify the roles of the supervisory bodies: agreed and opened for signature in October 1991;—

—a draft additional protocol providing for a system of collective complaints;—

—a more effective system of national reporting;—

—an updating of the Charter's substantive provisions, the subject of this report.Th

The revised European Social Charter takes account of developments in labour law and social policies since the Charter was drawn up in 1961. The revised Charter is a comprehensive international treaty which brings together in a single instrument all the rights guaranteed in the Charter and the 1988 additional protocol, along with the amendments to these rights and the new rights agreed and suggested by the expert committee (Charte-Rel) which has been meeting since 1991. Assembly representatives participated in their discussions.

Since the draft revised Charter goes entirely in the direction of the proposals made in Recommendation 1168 (1991) on the future of the Social Charter of the Council of Europe, the Assembly gives it unqualified support.

The revised Charter may become a frame of reference for the social initiatives of the European Union and for legislation policy in the countries of central and eastern Europe.

I. Draft opinion

1. The Assembly welcomes the draft revised Social Charter and points out that it considers this revised text as a real improvement, in particular as a large part of the proposals made by the Assembly in Recommendation 1168 (1991) on the future of the Social Charter of the Council of Europe have been taken into account. It therefore very much hopes that it will be adopted by the Committee of Ministers as soon as possible.

2. The Assembly also hopes that this instrument will be ratified by member states.

3. In this connection, the Assembly recalls that thirteen member states have not yet ratified the existing Charter. It considers that this updating should be the opportunity for them to rethink their position. Ratification of the European Social Charter or of the revised Charter should be considered as one of the most important steps taken by states in their capacity as members of the Organisation. Since the Assembly recently in its reports on the accession of new member states has expressed the wish that they ratify the Charter, it would like to make a similar request to those member states which have not yet taken this step.

4. The Assembly recalls its Opinion No. 167 (1993) on the draft second additional protocol providing a system of collective complaints where it unreservedly welcomed the strengthening of the supervisory system of the Social Charter by means of a collective complaints procedure. The Assembly finds it extraordinary that despite this opinion and the full support expressed by the social partners, the Committee of Ministers has still not adopted the protocol elaborated by the expert committee. It therefore urges the Committee of Ministers to adopt this text as soon as possible, and that Article D of Part III of the revised Charter be maintained.

5. As regards the scope of the revised Charter in terms of persons protected, the Assembly fully understands that it should be limited as far as foreigners are concerned to those lawfully residing or working regularly within the territory of the party concerned. However, it shares the view that the scope should not in addition be limited only to nationals of the Contracting Parties since the scope of the Charter should be as similar as possible to that of the European Convention on Human Rights. Therefore, the Assembly is in favour of deleting the text between brackets at the beginning of the appendix.

6. Moreover, on the issue of whether or not to include a provision to the effect that the Committee of Ministers may at a later stage invite the European Union to accede to the revised Social Charter, the Assembly has always felt that the accession of the European Union is extremely important, for political as well as practical reasons. It therefore urges retention of Article L of the revised Charter.

7. Finally, the Assembly suggests that the revised text, in order to distinguish it from the previous one and from the Community Charter and also to clearly indicate that a new human rights instrument has been adopted, be called "European Charter on Social and Economic Rights".

II. Explanatory memorandum

by Mr RATHBONE

Contents Page

1. Presentation of the revised Charter 3

2. Rights amended by the revised Charter 3

3. New rights included in the revised Charter 7

4. Supervision of compliance with the undertakings contained in

the revised Charter 9

5. Other innovations 9

6. Questions left outstanding 9

1. Presentation of the revised Charter

1.1. The revised European Social Charter takes account of developments in labour law and social policies since the Charter was drawn up in 1961. The revised Charter is a comprehensive international treaty which brings together in a single instrument all the rights guaranteed in the Charter and the 1988 additional protocol, along with the amendments to these rights and the new rights agreed and suggested by the Charte-Rel Committee.

1.2. The revised Charter has been drafted in such a way as to be an autonomous instrument, but with the same supervisory machinery as the Charter. It does not conflict with the Charter but is eventually intended to replace it.

1.3. The revised Charter presents Parts I and II in the same way as they are presented in the Charter and the 1988 additional protocol, adding the new rights at the end of each part. This presentation was deemed preferable since it had the advantage of being familiar, of avoiding confusion with the original texts and the existing case law and of facilitating the presentation of national reports. It would also make it possible to add new rights in the future without changing the structure of the text.

1.4. Part II contains the economic and social rights provided for by the revised Charter. As in the case of the Charter, those rights may be accepted selectively subject to a minimum number of acceptances.

2. Rights amended by the revised Charter

2.1. Articles 1 to 19 reproduce the text of the corresponding articles of the Charter with the following main differences:

2.2. Article 2 — The right to just conditions of work

2.2.1. The revised Charter provides for an increase of annual holidays, from the two weeks provided by the Charter to four weeks. In addition, this provision, which in the Charter provides for additional paid holidays or reduced working hours for workers engaged in dangerous or unhealthy occupations, has been amended so as to reflect present-day policies which aim to eliminate the risks to which workers are exposed. The idea is that additional paid holidays or reduced working hours should only be provided where it has not been possible to eliminate or reduce sufficiently the risks inherent in dangerous or unhealthy occupations.

2.2.2. This revised article also obliges the parties to ensure that workers are informed about the essential aspects of their contract or employment relationship.

2.2.3. The general recognition of the fact that night work places special constraints on workers, both men and women, has led to the inclusion of this paragraph in the revised Charter. Furthermore, whereas Article 8, paragraph 4a of the Charter provides that the employment of women workers in general for night work in industrial employment shall be regulated, the corresponding provision in the revised Charter protects women only in the case of maternity. The other women previously protected by Article 8, paragraph 4a of the Charter are therefore covered by Article 2, paragraph 7 of the revised Charter as regards night work on the same conditions as men in conformity with the principle of equality.

2.3. Article 3 — The right to safe and healthy working conditions

Under this revised provision, the parties are obliged to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment. The aim of this policy shall be to improve occupational safety and health and to prevent accidents and injury to health, inter alia, by minimising risks. In addtion, this provision provides that the Parties shall promote the progressive development of occupational health services with essentially preventive and advisory functions.

2.4. Article 7 — The right of children and young persons to protection

2.4.1. The minimum age required by this provision for admission to employment in prescribed occupations regarded as dangerous or unhealthy which was not specified by the Charter, has been fixed at 18 years in the revised Charter.

2.4.2. The minimum age-limit provided for by this provision for regulation of the working hours has been raised to 18 years as compared to the 16 years provided for in the Charter.

2.4.3. The length of annual holidays with pay for young workers has been increased, from the three weeks provided in the Charter to four weeks.

2.5. Article 8 — The right of employed women to protection of maternity

2.5.1. In order to take into account the principle of equality, this article, which corresponds to Article 8 of the Charter, has been modified so as to protect women exclusively in the case of maternity. This is a result, inter alia, of the changes made to the heading and to the introductory sentence. As stated in the heading of the provision it only applies to employed women.

2.5.2. As compared to the Charter, the length of maternity leave has been increased from twelve to fourteen weeks.

2.5.3. This provision of the revised Charter extends the minimum period of protection against dismissal for pregnant women as compared to the corresponding provision of the Charter. The period runs from the time a woman notifies her employer that she is pregnant until the end of her maternity leave.

2.5.4. As far as night work is concerned, the basic idea behind the revised Charter is that regulations of the employment of women for night work are needed only in the case of maternity. It is thus more restrictive than Article 8, paragraph 4a of the Charter, which concerns regulation of night work for women in general, but at the same time it is wider in its scope as it is not limited to regulating night work for women in industrial employment. Article 2, paragraph 7 offers protection for both men and women performing night work (see 2.2.3. above).

2.5.5. This revised article, which amends Article 8, paragraph 4b of the Charter, limits the prohibition of employment of women in underground mining and in all other work which is unsuitable by reason of its dangerous, unhealthy or arduous nature to the case of maternity as defined in the preceding paragraph. It requires parties to take appropriate measures to protect the employment rights of the women concerned. By this it has been understood that such workers should be given the possibility to transfer to suitable work, or to be granted leave from work if a transfer is not feasible, with the payment of salary or other adequate allowance and without loss of status, seniority or access to promotion.

2.6. Article 10 — The right to vocational training

A new paragraph 4 has been added to this article, prompted by long-term unemployment, providing for the necessity to adopt "special" measures for the retraining and reintergation of the long-term unemployed.

2.7. Article 12 — The right to social security

Reference is made in this provision to the European Code of Social Security and to the European Code of Social Security (Revised) whereas it is made in the Charter to ILO Convention No. 102. The difference between ILO Convention No. 102 and the Code relates to the minimum requirements as to how many parts must be accepted for the ratification of these instruments (3 for the convention; 6 for the Code). The ratification of the revised Code requires a higher standard of social security than is required for the ratification of ILO Convention No. 102.

2.8. Article 15 — The right of persons with disabilities to independence, social integration and participation in the life of the community

The protection of the disabled afforded by this article has been extended as compared to that afforded by Article 15 of the Charter, as it no longer applies only to vocational rehabilitation but to the right of persons with disabilities to independent social integration, personal autonomy and participation in the life of the community in general. The words "effective exercise of the right to independence" contained in the introductory sentence to the provision, imply, inter alia, that disabled persons should have the right to an independent life. Under this provision parties must aim to develop a coherent policy for people with disabilities. The provision takes a modern approach to how the protection of the disabled shall be carried out, for example by providing that guidance, education and vocational training be provided whenever possible in the framework of general schemes rather than in specialised institutions. An approach which corresponds to that of Recommendation No. R (92) 6 of the Committee of Ministers of the Council of Europe. It not only provides the possibility, but to a large extent obliges parties, to adopt positive measures for the disabled.

2.9. Article 16 — The right of the family to social, legal and economic protection

2.9.1. The text of the article itself has not been amended, however as the protection offered to "mothers" by Article 17 of the Charter has not been maintained in the new version of Article 17 which is contained in the revised Charter, Article 16 of the latter instrument will now cover this group. It must be pointed out that the "mothers" in question may be single parents, but they may also be living in a couple. The protection particularly concerns women who are not covered by Article 8 and/or who are not covered by any social security scheme providing the necessary financial assistance during a reasonable period before and after confinement, as well as adequate medical care during confinement.

2.9.2. The revised Charter contains a statement in the appendix to this provision, to the effect that the protection afforded by it also covers single-parent families.

2.10. Article 17 — The right of children and young persons to social, legal and economic protection

2.10.1. Whereas the only general protection of children in the Charter is contained in Article 7, which refers almost exclusively to the protection of children at work, this article of the revised Charter offers protection for children and young persons outside the context of work and addresses the special needs arising from their vulnerability. The provision protects children, irrespective of such factors as their birth status and the marital status of their parents.

2.10.2. In confirmation of the case-law of the Committee of Independent Experts the word legal has been added to the title.

2.11. Article 19 — The right of migrant workers and their families to protection and assistance

2.11.1. Only the appendix to paragraph 6, which gives the definition of the term "family of a foreign worker", has been amended as compared to the appendix to the corresponding provision the Charter. Instead of covering the migrant worker's wife, it now covers the spouse of the migrant worker, whether a wife or a husband. Furthermore, the appendix now provides that unmarried children of migrant workers are covered as long as they are considered to be minors by the receiving state and are dependent on the migrant worker. This amendment has been made as the age of majority is eighteen years in most States Parties to the Charter whereas the Charter provides for an age-limit of twenty-one years for the entry of children of migrant workers. The words "at least" have been maintained to indicate that states may decide to extend the notion of the family of the migrant worker.

2.11.2. Furthermore, two new paragraphs have been added: paragraph 11 concerning the teaching of the national language of the receiving state to migrant workers and members of their families and paragraph 12 which provides for the teaching of the migrant workerr's mother tongue to the children of the migrant worker.

2.12. Articles 20 to 23 correspond to the provisions of Articles 1 to 4 of the additional protocol of 1988. Paragraphs 2, 3 and 4 of Article 1, paragraph 2 of Article 2 and paragraph 2 of Article 3 have been moved to the appendix for the purposes of harmonisation. This change does not affect the nature and scope of the legal obligations accepted under these provisions.

2.13. Article 20 — the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex

The importance of Article 20 of the revised Charter (which corresponds to the provisions of Article 1 of the additional protocol of 1988) should be underlined in that it guarantees the right to equal opportunities and equal treatment without discrimination on the grounds of sex in broader areas than those originally provided for in the Charter. For this reason reference is made in this provision, for instance to occupational resettlement, a concept which does not appear as such in the Charter.

3. New rights included in the revised Charter

3.1. Articles 24 to 31 are new provisions which guarantee the following rights:

3.2. Article 24 — The right to protection in cases of termination of employment

This provision sets out two general principles:

a. the right not to be dismissed unless there are valid grounds;

b. the right to adequate compensation or other relief in cases of unfair dismissal.

3.3. Article 25 — The right of workers to the protection of their claims in the event of the insolvency of their employer

This provision lays down the general principle of the right of workers to protection of their claims in the event of the insolvency of their employer.

3.4. Article 26 — The right to dignity at work

The purpose of this article is to guarantee workers the right to dignity at work and in connection with work. It emphasises the promotion of awareness and prevention of sexual harassment (which may be defined as unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of workers, including the conduct of superiors and colleagues) and victimisation (which comprises recurrent reprehensible or distinctly negative and offensive acts by superiors and colleagues affecting the dignity of a worker in the workplace or in relation with work) but does not require that parties ensure protection against such conduct. In addition, it follows from the appendix that parties do not need to enact legislation. However, they are required to take "all appropriate measures" to protect workers.

3.5. Article 27 — The right of workers with family responsibilities to equal opportunities and equal treatment

This provision provides for equality of opportunity and treatment for workers with family responsibilities.

3.6. Article 28 — The right of workers' representatives to protection in undertaking and facilities to be accorded to them

This provision of the revised Charter aims to protect workers' representatives in the enterprise, a group which is not covered by Article 5 unless the workers' representative is also a trade union representative.

3.7. Article 29 — The right to information and consultation in collective redundancy procedures

Under this article the parties undertake to ensure that employers inform and consult workers' representatives prior to collective redundancies. The information and consultation shall concern the possibilities of avoiding collective redundancies or limiting their number or mitigating their consequences. Recourse to social measures providing aid for redeploying or retraining the workers concerned is mentioned as an example of ways of mitigating the consequences of collective redundancies.

3.8. Article 30 — The right to protection against poverty and social exclusion

3.8.1. This article provides for a comprehensive and co-ordinated approach to protection against poverty and social exclusion. It also provides that measures corresponding to this approach are reviewed and adapted to new situations.

3.8.2. The purpose of the article is not to repeat the juridical aspects of the protection covered by other articles of the Charter, although parties may naturally refer to information given in respect of other provisions when reporting under this provision.

3.8.3. The term "poverty" in this context covers persons who find themselves in various situations ranging from severe poverty, which may have been perpetuated for several generations, to temporary situations entailing a risk of poverty. The term "social exclusion" refers to persons who find themselves in a position of extreme poverty through an accumulation of disadvantages, who suffer from degrading situations or events, from exclusion or a denial of rights lasting over long periods of time or for reasons of concurring circumstances. However, social exclusion also strikes or risks to strike persons who without being poor are denied access to certain rights or services as a result of long periods of illness, separation from their families, violence, release from prison or marginalisation as a result for example of alcoholism or drug addiction.

3.9. Article 31 — The right to housing

In order to ensure a right to housing, this provision obliges parties to take measures aiming to progressively eliminate homelessness, to promote access to housing of an adequate standard and to make the price of housing accessible to those without adequate resources. By housing of an "adequate standard" is meant housing which is of an acceptable standard with regard to health requirements. For a definition of the terms "without adequate resources" reference is made to Article 13.

4. Supervision of compliance with the undertakings contained in the revised Charter

4.1. Given that the two Charters are to co-exist, at least during a transitional period, the drafters of the revised Charter thought it essential that the two legal instruments be supervised in the same manner. Consequently, they did not wish to create separate supervision machinery for the revised Charter and instead simply specified in Article C that undertakings entered into under the revised Charter shall be subject to the same supervision procedure as that provided for in the Charter.

4.2. Furthermore, this provision is of an open-ended nature and the supervisory procedure will therefore be the same as that which applies to the Charter at any given time.

5. Other innovations

5.1. Article E — Non-discrimination

This article has been based on Article 14 of the European Convention on Human Rights which contains a more extensive enumeration of grounds than the preamble of the Charter. The grounds enumerated in the article, are the same as those contained in the preamble of the Charter, with the addition of some grounds mentioned in the Convention. The words "such as" contained in the provision indicate that the list of grounds on which discrimination is not permitted is not exhaustive. It is understood that this provision prohibits inter alia the refusal to employ a woman on grounds of pregnancy. It also provides for non-discrimination in access to health care. These are merely two examples.

6. Questions left outstanding

6.1. Article D — Collective complaints

6.1.1. On this issue, in its Opinion No. 167 (1993) on the draft additional protocol providing a system of collective complaints, the Assembly unreservedly welcomed the strengthening of the supervisory system of the Social Charter by means of a collective complaints procedure. It is regrettable that despite this Opinion and the full support expressed by the social partners, the Committee of Ministers has still not adopted the protocol elaborated by the Charte-Rel Committee. The Assembly therefore expects the Committee of Ministers to adopt this text as soon as possible and insists that Article D of Part III of the revised Charter be maintained.

6.1.2. This provision in the revised Charter provides that a state which had ratified the additional protocol providing for a system of collective complaints, before ratifying the revised Charter, should be obliged to accept the supervision of its obligations under the revised Charter in accordance with the procedure set out in the protocol. It is in fact important that ratification of the revised Charter should not in practice result in denunciation of the protocol on collective complaints. In addition, given that the parties' undertakings in Parts I and II of the Charter are replaced by the undertakings in the revised Charter, it would be logical for a state which has ratified the protocol on collective complaints to accept that such complaints should cover the undertakings entered into under the revised Charter.

6.1.3. Paragraph 2 is intended to allow states which ratify the revised Charter before ratifying the protocol on collective complaints to agree to be bound by the latter by declaration. The main purpose of this provision is to prevent states from having to submit too many legal instruments to their national parliaments for ratification. With a view to simplification, a state may therefore declare itself bound by the protocol on collective complaints when it ratifies the revised Charter. It is therefore a very interesting and useful provision which should be maintained.

6.2. Scope of the revised European Social Charter in terms of persons protected

6.2.1. The scope, ratione personae, of the Charter has been defined in the appendix according to which the Charter includes foreigners "only in so far as they are nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned". This is one of the main differences between the Charter and the European Convention on Human Rights which applies to all persons whatever their nationality and/or situation.

6.2.2. The Charte-Rel Committee had expressed its agreement with the proposal, supported by the social partners, to extend the scope of the revised Charter to all persons whatever their nationality, while keeping however the condition that they must be lawfully resident or working regularly within the territory of a party.

6.2.3. This amendment is without prejudice to the scope of Article 12 paragraph 4 and Article 13 paragraph 4 which has been defined in these articles. In addition if follows from the text of the appendix that Articles 1 to 17 and 20 to 31 shall be interpreted in the light of the provision of Articles 18 and 19.

6.2.4. However, because of the importance of this proposal, the committee left it to the Committee of Ministers to take a final decision. The Assembly cannot but insist on this extension of the scope of the revised Charter, in view of the fact that this treaty constitutes a major instrument for the protection of human rights in Europe.

6.3. Article L — Accession by the European Union)

6.3.1. It will be for the Committe of Ministers to decide whether or not to include in the revised Charter a provision for subsequent accession by the European Union, when the political conditions necessary for such accession exist.

6.3.2. The provision included in the revised Charter does not attempt at this stage to deal with all the consequences of accession of the European Union to the revised Charter, particularly where the functioning of the supervisory machinery is concerned. In case of accession, it would be for the Committee of Ministers to determine the actual form of Community participation in the revised European Social Charter.

6.3.3. The main purpose of this article was to avoid having to draw up an amending protocol, which would have to be ratified by all the States Parties to the revised Charter, if at any stage the European Union wished to become a party to this instrument. The Assembly welcomes the insertion of such a provision in the revised Charter and hopes that the Committee of Ministers will accept to include it in the text as it already did for several European treaties, in particular in the case of the revised European Code on Social Security.

Reporting committee: Social, Health and Family Affairs Committee.

Budgetary implications for the Assembly: None.

Reference to committee: Recommendation 1168 (1991) and Order No. 482 (1992).

Draft opinion unanimously adopted by the committee on 2 February 1995.

Members of the committee: Mr Gusenbauer (Chairman), Mr Rathbone (Vice-Chairman), Mr Marques (Vice-Chairman), Mrs Andnor, Mrs Albrink, Mr Banks (Alternate: Cox), Mrs Belohorska, Sir Anthony Bowden, Mr Bugli, Mrs Burbiené, MM. Buzatu (Alternate: Leonte), Christodoulides, Curto, Dees, Deguara, Dionisi, Djerov, Mrs Fleetwood, Mrs Gatterer, MM. Geoffroy (Alternate: Birraux), Gouteyron, Gross, Haack, Mrs Halonen, Mr Hegyi, Mrs Høegh, MM. Horn, Jacquat, Keller, Kollwelter, Kotsonis, Koucký, Laanoja, van der Maelen, Maginas, Malachowski, Mazzone, Mozetic, Mrs Van Nieuwenhoven, Miss Özver, MM. Palacios, Paunescu, Mrs Poptodorova, Mrs Ragnarsdottir, Mr Raska, Mrs Robert, MM. Robles Orozco, Scaglioso, Wallace (Alternate: Maloney), Weyts, Wielowieyski, Mrs Wohlwend, Mr Yürür.

N.B. The names of the members present at the meeting are printed in italics.

Secretaries to the committee: Ms Coin and Ms Meunier.